The Court of Appeal of Alberta's recent decision in Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239 ("Mostafa"), has determined that there is no right to in-person questioning in Alberta. While the underlying order approving virtual questioning referenced the existence of the pandemic as a factor, the Court of Appeal's broad comments lays the foundation for litigants to insist on virtual questioning post-pandemic.

Background

The underlying litigation began in 2017 and concerns a dispute between two dentists and their respective professional corporations over a cost sharing agreement. In May 2020, the Respondents sought to conduct already scheduled questioning virtually because of the pandemic. The Appellants refused. An applications judge ruled in favour of the Respondents and permitted virtual questioning because:

  • as a matter of general knowledge, Covid-19 cases were on the rise and restricted social interactions correlated with decreased case numbers;
  • videoconferences permit the court system to function regardless of pandemic numbers;
  • questioning is a lengthy interaction in a relatively small space;
  • videoconferencing had been ordered before the pandemic;
  • transcripts, prepared from questioning, don't reflect witness demeanour; and
  • delay from postponing questioning until it could be completed in-person was unacceptable.

In 2021, a chambers judge agreed with the applications judge and dismissed the appeal. Questioning was then conducted virtually, but the Appellants still pursued the matter to the Court of Appeal.

Guidance from Mostafa

In Mostafa, the Appellants argued that the Rules of Court are silent on allowing virtual questioning, and that a party's ability to assess a witnesses credibility is impaired if the questioning proceeds virtually. As a result, it was an unreasonable exercise of the Court's discretion to allow virtual questioning over the questioning party's objection.

The Court of Appeal adopted chambers judge's reasons, dismissed the appeal, and found:

  • The Court does have jurisdiction to order remote questioning under the Rules;
  • "Use of readily available technology is part of the basic skillset required of civil litigators and courts"; and
  • Virtual questioning does not impair the ability to assess credibility, noting video conference testimony has been allowed for serious criminal charges, "there is no significant disadvantage to cross-examining by videoconference" and technology has improved to such a degree that any perceived concerns now lack substance;

While the original decision allowing virtual questioning was rooted in concerns about the pandemic, the Court of Appeal reached a broad conclusion about virtual questioning generally, stating "videoconferencing is a successful and effective way of conducting legal matters and advancing litigation". The Court Appeal goes on to note this is particularly true during a pandemic, but its broad comments will undoubtedly be relied on in the future where parties want to insist on virtual questioning for other reasons, such as, for example, the location or inconvenience to the witness.

Case Information

Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation, 2022 ABCA 239

Docket: 2101-0329AC

Date of Decision: July 6, 2022

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